FEDERAL COURT OF AUSTRALIA

SZBFE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1162

MIGRATION – whether harassment of a Muslim man who marries a Hindu woman in Bangladesh is persecution for reasons of religion – not sufficient facts found by Refugee Review Tribunal

Migration Act 1958 (Cth), s 91R

SZBFE v Minister for Immigration [2005] FMCA 189, reversed in part

SZBFE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 434 OF 2005

GYLES J

24 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be upheld in part. 

2.      The order of the Federal Magistrates Court be set aside.

3.      The decision of the Refugee Review Tribunal be set aside.

4.      The matter be remitted to the Refugee Review Tribunal to be decided in accordance with law. 

5.      The respondent pay the appellant’s costs of this appeal and of the proceedings in the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the decision of Driver FM dismissing an application seeking to set aside a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of the Delegate of the Minister not to grant the appellant a protection visa pursuant to the Migration Act 1958 (Cth) (the Act) (SZBFE v Minister for Immigration [2005] FMCA 189).

2                     The appellant is a Muslim from Bangladesh.  He had been in Australia for nearly four years when he first made an application for a protection visa.  He claimed a fear of persecution on two bases.  The first was for reasons of his political opinion, he being an active supporter of the Bangladesh National Party who had been harmed on a number of occasions by members of the rival Awami League for that reason and had been the subject of a number of false charges on that account.  The second was for reasons of religion in that he was proposing to marry a Hindu woman, which had, and would, lead him to suffer serious harm.  The appellant was unrepresented in the Federal Magistrates Court and is unrepresented on this appeal.

3                     I am satisfied that there is no substance to the complaints made by the appellant concerning the decision of the learned Federal Magistrate in relation to claimed persecution for reasons of political opinion.  I can see no proper basis upon which there can be any criticism of this aspect of the reasons for judgment to which I need not add. 

4                     The issue concerning persecution for reasons of religion is not so easily disposed of.  The Tribunal’s decision dealing with this issue is as follows:

‘Dealing with the mixed marriage based claim, there is no supporting evidence of the planned marriage, or the engagement party, or the beating and subsequent injury sustained, other than the applicant's assertion.  The independent information, which the Tribunal accepts, is to the effect that the people of Bangladesh are in the majority tolerant, the religious relationships are generally good, the mixed marriages are not uncommon in Bangladesh, that the law specifically recognises them, that Fastwas are required to be in writing (which this one is not) and that protection from them and other sectarian violence is provided by law, albeit more effective in cities than in rural areas.  Further while inability to marry the person of one's choice is most unfortunate, the Tribunal is not satisfied that it constitutes serious harm as described in the Act. 

On the basis of this information, the Tribunal finds that the applicant has not suffered serious harm as a result of his planned marriage, nor will he if he returns to his country, or his intended becomes a Muslim.  The Tribunal also finds that, as the applicant's difficulties are local, re-location in Dhaka or elsewhere is reasonably available to this tertiary educated, business executive and chef who has three languages.’

5                     In relation to that finding, Driver FM said:

‘It is not entirely clear to me from that statement to what extent the presiding member found that the applicant's claim of fear was not genuine and to what extent he found that the claim, if genuine, was not well-founded.  It appears to be a mixture of both.  I take the presiding member to have made a finding that the claim was not genuine but that if the presiding member was wrong the claim was not well-founded because he could relocate, because the harm he feared was not serious harm for the purposes of the Migration Act and because Bangladesh society is more tolerant than the applicant believed.

I have great difficulty reconciling the presiding member's statement that the harm feared by the applicant was not serious harm for the purposes of the Act with my decision in SZANS v Minister for Immigration [2004] FMCA 445.  However, even if the presiding member erred in making that finding, and I think he probably did, it was not, in my view determinative of the outcome of the application before the RRT.  The presiding member did not believe the applicant's claim.  Further, even if the claim was genuine it was not supported by the independent country information.  Also, the applicant had the opportunity to relocate to avoid the feared harm. 

Even if I am wrong and the finding by the presiding member on the application of the Act was in some way determinative of the claim it would, in my view, be futile to return the case to the RRT for further consideration, having regard to the other findings made by the presiding member.  Beyond that, the fact that some eight years have now passed since the applicant left Bangladesh would provide, in my view, a further obstacle to the favourable reconsideration of this claim before the RRT.’ 

6                     The appellant’s claims were that his relationship with the Hindu woman was not tolerated by his family or the community.  Conservative Muslims (including his family) consider Hindus to be bitter enemies.  He was ostracised and threatened with stoning to death if he went ahead with the marriage by virtue of a local arbitration (or Fatwa) in which he was ordered not to continue the relationship.  When he organised a small party with close friends in a restaurant in Dhaka to celebrate the engagement, a group of people attacked him in the restaurant and he was severely beaten and injured.  The family of his fiancée was also threatened.

7                     In the light of the ultimate decision of the Tribunal, it is significant to note that, during the course of the Tribunal’s account in its reasons of what took place at the hearing, the Tribunal noted that it had commented ‘that, if his bride converted to Islam, there would be no difficulties raised or threat of stoning’.  The Tribunal also commented that ‘the Fatwa promised him stoning if he married his non-Muslim wife.  As he had not married, there was no current threat.’  It was further commented that his mixed marriage problem was local.  ‘Why not relocate elsewhere in Dhaka or in Bangladesh?’

8                     Amongst the material cited by the Tribunal on this topic in its reasons is the following:

‘RIAS (1994) in Country Profile – Bangladesh states Mixed marriages are not very common but more common in cities than in the country.  People in mixed marriages can encounter various forms of non-violent harassment from their families and peers.  This harassment tends to be more common among uneducated and illiterate people, regardless of where they live.  The Government has no official position on mixed marriages, which are legal, and does not seek to discourage or prevent them (RIAS 1994).

In answer to questions asked by the Tribunal on mixed marriages in Bangladesh, a Senior Lecturer in Law at Macquarie University, wrote as follows:

In Bangladesh, there is a community expectation that a person will marry another person belonging to the same religion.  However, if this does not occur, the community expects that either of the parties to a marriage will convert to the religion of his or her partner.  Since Bangladesh is predominantly Muslim, the community expects that a Hindu woman will convert to Islam in the case of a marriage between a Muslim man and a Hindu woman. …

A marriage registrar or a Magistrate would not hesitate to administer that marriage between a Muslim man and a Hindu woman, provided that both partners have reached their statutory age required for independent consent and have rendered their voluntary consent to marry each other (currently in Bangladesh, this age is 18 years for women and 21 years for man irrespective of religions).  However, under the personal law of the male partner (i.e. Muslim Law), such marriage may be treated as an IRREGULAR MARRIAGE but not a VOID MARRIAGE.  This is precisely because the defect in the marriage under Muslim law (i.e. non-Muslim hood of the female partner, though she is not a follower of a revealed religion) is rectifiable through conversion. …’

9                     The basic problem on this aspect of the case is that I share the difficulty of the learned Federal Magistrate in understanding precisely what was found by the Tribunal.  I do not agree that it was found that the subjective claim of fear of persecution was not genuine.  It appears to me that the Tribunal did reject the evidence of the beating at the engagement party.  There is no express finding that the appellant had not suffered ostracism and threats as he had claimed.  The reasons are no more than equivocal on this point, as it is not at all clear whether the Tribunal would regard ostracism and threats as being serious harm.  In my view, the Tribunal did not find that the relationship and planned marriage with the Hindu woman were not genuine.  The finding about not suffering serious harm referred to the ‘planned marriage’ as a fact.  There is also an ambiguity in the critical sentence caused by the use of the word ‘or’.  The sense of that part of the sentence, bearing in mind what had been said earlier, is consistent with ‘or’ being used in error with ‘and’ being intended. 

10                  Leaving aside relocation, it appears to me that the substance of what the Tribunal found was that harm could be avoided if the appellant chose not marry the Hindu woman or if the Hindu woman converted to Muslim at the time of the marriage.  Thus, subject to the issue of relocation, the issue of serious harm did require to be examined.  I part company with the learned Federal Magistrate in that respect. 

11                  The finding on relocation appears to have been made without any basis at all.  In the first place, the finding that the problem was local appears to be contrary to all of the material referred to by the Tribunal in its reasons.  The problem is caused by the general Muslim law of marriage and the attitude of conservative Muslims to Hindus in Bangladesh.  As Bangladesh is principally a Muslim country, these are not local issues on any view.  The material cited by the Tribunal indicates that harassment would be more common among uneducated and illiterate people regardless of where they live.  That is not local.  Therefore, in my opinion, there is no basis upon which it could be said that the problem was local in nature, albeit it was manifested locally.  In my view, this is not simply a case of error or even illogicality.  It is a finding made completely without any basis at all.

12                  Whether harassment of the kind in question amounts to serious harm within the meaning of s 91R of the Act is not an easy question to answer.  Within limits, it is a question of fact depending in a large measure upon precise findings of primary fact as to the nature of the harassment which might reasonably be expected.  The harm claimed to be feared by the appellant is supported to a significant extent by the independent information referred to by the Tribunal in its reasons.  It is not unarguable that the harassment claimed to be feared would qualify as serious harm for the purposes of s 91R.  There was little discussion of that issue, either by the Tribunal or the learned Federal Magistrate.  To the extent that the learned Federal Magistrate considered the issue, it would appear that he would have been favourably disposed to an argument that the claims amounted to serious harm, referring to his own decision in SZANS v Minister for Immigration [2004] FMCA 445, (2004) 186 FLR 158.  As it happens, that decision was reversed on appeal (Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733) on grounds which are not directly applicable in the current circumstances where religion is, at least, a factor in the claimed persecution and where more than private pressure is involved.  In my opinion, the issue requires to be considered by the Tribunal after the primary facts have been found on a clear and proper basis.  This has not yet occurred.  Hence, the Tribunal has not addressed the real issue and jurisdictional error is established.

13                  I should add that, in my opinion, it is not futile to return the case to the Tribunal for further consideration.  There are no findings on this issue which would render that course futile.  The passage of time since the appellant left Bangladesh would favour reconsideration rather than work in the other direction as it is best that the question be decided in the light of contemporary circumstances in Bangladesh.

14                  The appellant has established that the learned Federal Magistrate was in error in not setting aside the finding of the Tribunal on the issue of persecution for reasons of religion.  The appeal is upheld to that extent.  The order of the Federal Magistrates Court is set aside and, in lieu thereof, it is ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal to be decided in accordance with law.  The respondent is to pay the appellant’s costs of this appeal and of the proceedings in the Federal Magistrates Court.

Associate:

Dated:              24 August 2005